Cedar Lane Heights Corp. v. Marotta

Citation17 A.D.2d 651,230 N.Y.S.2d 655
PartiesIn the Matter of CEDAR LANE HEIGHTS CORP., Petitioner-Respondent, v. John MAROTTA, as Building Inspector of the Town of Ossining, Appellant.
Decision Date09 July 1962
CourtNew York Supreme Court Appellate Division

Joseph M. Darby, Ossining, for appellant.

Clark, Gagliardi, Gallagher & Smyth, White Plains, for respondent; Wm. T. Gallagher, White Plains, of counsel.

Before BELDOCK, P. J., and KLEINFELD, RABIN, CHRIST and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding under article 78 of the Civil Practice Act, the Building Inspector of the Town of Ossining appeals from an order of the Supreme Court, Westchester County, dated April 19, 1962, which granted the petitioner's application and directed the Building Inspector to issue a building permit for the construction of an apartment development as requested in said application.

Order affirmed, with costs.

Petitioner applied for a building permit to erect garden type apartment buildings and filed with the Building Inspector plans and specifications for the proposed construction. Petitioner was notified that said plans and specifications complied with the local Building and Zoning Ordinances and that the permit would issue upon approval of a site plan by the Planning Board of the town. The site plan was submitted and was approved, as amended, by resolution of the Planning Board. Petitioner thereafter requested the issuance of the permit, but it was refused by the Building Inspector on the ground that 'he had been instructed by the Supervisor of the Town of Ossining to withhold its issuance.'

Special Term granted the application to direct the Building Inspector to issue the permit. The Building Inspector contends that his refusal to issue the permit was neither arbitrary nor illegal since petitioner did not have the site plan approved by the Planning Board after a public hearing. Subdivision 1 of section 276 of the Town Law requires a public hearing 'to approve plats showing lots, blocks or sites, with or without streets or highways.' The site plan here involved was not the subdivision plat intended by the section. A plat is a subdivision of land into lots, streets and alleys (Gannett v. Cook, 245 Iowa 750, 61 N.W.2d 703). Although a public hearing is required before plats are approved, no such public hearing is required before a site plan is approved.

BELDOCK, P. J., and KLEINFELD and RABIN, JJ., concur.

CHRIST and BRENNAN, JJ., dissent and vote to reverse the order and to deny the application, with the following memorandum:

The proposed construction is of garden type apartment buildings on an undeveloped tract of land of approximately 6.7 acres. The town Building Inspector viewed the proposed project as one involving such an expanse of land area as should be passed upon by the Planning Board of the town upon the basis of a plat as contemplated by section 276 of the Town Law. He gave...

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7 cases
  • Holmes v. Planning Bd. of Town of New Castle
    • United States
    • New York Supreme Court Appellate Division
    • 17 Noviembre 1980
    ...... (Nemeroff Realty Corp. v. Kerr, 38 A.D.2d 437, 441, 330 N.Y.S.2d 632, affd 32 ...Snowden, 28 A.D.2d 704, 280 N.Y.S.2d 945; Matter of Cedar Lane Hgts. Corp. v. Marotta, 17 A.D.2d 651, 230 N.Y.S.2d ......
  • Moriarty v. Planning Bd. of Village of Sloatsburg
    • United States
    • New York Supreme Court Appellate Division
    • 2 Septiembre 1986
    ...... Corp. v. Planning Bd. of Town of Clarkstown, 57 N.Y.2d 206, 455 ... approval required such a hearing (see, Matter of Cedar Lane Hgts. Corp. v. Marotta, 17 A.D.2d 651, 230 N.Y.S.2d ......
  • General Mut. Ins. Co. v. Grempel
    • United States
    • New York Supreme Court Appellate Division
    • 9 Julio 1962
  • Mahopac Isle Inc. v. Agar
    • United States
    • United States State Supreme Court (New York)
    • 26 Abril 1963
    ...... 750, 61 N.W.2d 703).' [39 Misc.2d 6] (Matter of Cedar Lane Heights Corp. v. Marotta, 17 A.D.2d 651, 230 N.Y.S.2d ......
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